ABSTRACT Capital regulations stemming from the Basel accords created incentives for banks to securitize mortgages, even risky ones; hold them at a correspondingly low Basel risk weight; or shift them off of banks' balance sheets to obtain even greater leverage. Securitization was praised by economists and regulators for dispersing risks to investors across the world, providing greater resilience to the financial system. However, since in reality banks tended to hold onto securitized assets—either on their balance sheets or off of them, (...) in off‐balance‐sheet entities—the accumulated credit risk remained with the banks, especially in the “shadow banking sector.” This explains the heightened vulnerability of the financial system to a sudden collapse. (shrink)

The inherent complexity of modern financial systems, and their basis in human behavior, make it hard to establish unequivocally the “who, what, where, when, and why” of the global financial crisis. However, after almost a decade, we know enough to discard much of what has, in the meantime, become folk wisdom about the causes of the debacle, including Wall Street bonus culture, bankers’ greed, the moral hazard of “too big to fail,” government intervention (“too much government”) and deregulation (“not enough (...) government”). While each of these factors may have played some role, the crisis can be much more accurately described as one of ignorance than malevolence. The common thread tying the emergence of the bubble to the disastrous consequences of its bursting is the misunderstanding of correlation and causation links in three key domains: economic policy, financial modeling, and the regulatory framework. These misunderstandings helped fuel the housing bubble and introduced fragility into the system, making it vulnerable to the bubble’s subsequent, unavoidable burst. (shrink)

The paper presented here illustrates the issue of philosophy within the contemporary practice of American medicine. Four forms of relationship between both disciplines will be discussed: philosophy and medicine, philosophy within medicine, medical philosophy, and philosophy of medicine. The aim of the paper is to illustrate the specificity of the proposed forms of relationship, i.e. the contrast between the autonomous approach of the both disciplines and the realistic philosophy of medicine promoted by Edmund D. Pellegrin, which closely links the issue (...) of the nature and theory of medicine with the undertaking of philosophical reflection. The issue of the topicality of Edmund D. Pellegrin's philosophy of medicine in the context of the current challenges of American health care will also be discussed. (shrink)

The presented article illustrates David DeGrazia’s bioethical standpoint regarding the theoretical and the practical problem of memory in the context of the personal identity of a patient suffering from Alzheimer's disease. The first part of the article is a presentation of the theoretical problem of memory in the context of numerical and narrative identity being the center of the metaphysical theory of the human person. The second part of the article presents a practical memory problem in the bioethical case of (...) a patient diagnosed with early stages of Alzheimer’s disease. The American bioethicist and philosopher David DeGrazia proposes that the theoretical solutions regarding the identity of the human person find their practical application in bioethics in resolving moral dilemmas in the health care. The final part of the article focuses on criticizing the possibilities of practical applications of theoretical solutions on the subject of the human person in the bioethical position of David DeGrazia. (shrink)

Recent scholarship has underscored the possibility that capital-adequacy regulations may have contributed to the 2008 financial crisis by privileging highly rated asset-backed securities, such as mortgage-backed securities. The same regulations gave an even more privileged position to sovereign debt, leading to the question of whether they helped cause the European sovereign-debt crisis. There is little question that the regulations encouraged European banks to invest in European governments' bonds, but it does not appear that this encouragement led to more government borrowing (...) by significantly reducing the yield governments needed to pay on their debt. However, it does appear that capital-adequacy regulations—along with post-2008 liquidity regulations—concentrated sovereign risk in the European banking system, aggravating the sovereign-debt problem by requiring government bailouts that, in turn, required the issuance of more sovereign debt, further jeopardizing the governments' fiscal position and banks' solvency. Exacerbating the situation, in the midst of a panic, the European Banking Authority imposed new capital requirements on banks and effectively forced them to realize mark-to-market losses on sovereign exposures. (shrink)

This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions . Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the (...) aim of winning - e.g. one can aim to play beautifully, and not, as Morgan suggests, only to win beautifully. More broadly, I argue for an account of games that is sensitive to the gap between playing and the game’s constitutive rules. Ultimately, the argument points to the descriptive priority for the social sciences of the concept of ‘play’ over the concept of games understood as ‘rule-governed domains’. (shrink)

Designing and examining systems of action plays an important role in modern engineering. Such a general approach to actions is also supportive to the discussions on the development of artificial intelligence agents. As a philosophically remarkable and practically useful approach to actions the theory of action proposed by the Polish philosopher, scientist and military specialist Józef Konieczny undergoes here further considerations. The Konieczny’s concepts have not been intensively thoroughly researched and further developed, and a deep philosophical analysis is the condition (...) for their efficient application when solving real-life problems. This paper presents own interpretations of Konieczny’s views on action, including own clarifications or additions to the original solutions. The main aim is to identify the essential elements of the theory of action and analyse it in the ontological context. The selected structures of action were characterised, the analysis of the fundamental concepts was conducted, the ontological characterization of the types of actions and the objects involved in action was developed, and the certain issues of realism and functionalism identified were discussed. The results obtained constitute an important testimony to the practice of philosophy in technology and are useful when aiming at further development of the approach analysed. (shrink)

This paper discusses a much-neglected aspect of Neil MacCormick's theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to adopt when deciding future similar cases. This (...) paper situates consequential reasoning in the overall picture of legal reasoning MacCormick develops in Legal Reasoning and Legal Theory, going on to show the evolution of his view on consequential reasoning in later work, which culminates in Rhetoric and the Rule of Law. It is argued that MacCormick's later view of consequential reasoning, ie, of a process of testing possible rulings by evaluating the acceptability or unacceptability.. (shrink)

In this paper, I try to show to what extent Wittgenstein’s thinking about the problem of the meaning of life was influenced by Tolstoy. I begin with the problem of what Tolstoy’s writings, especially philosophical, Wittgenstein knew. Then I proceed to three areas of impact: (1) treating the question of the meaning of life as the central problem for philosophy, (2) defining Ethics in terms of the meaning of life, and (3) the idea that the solution of the problem of (...) the meaning of life lies in a practical change, not in giving a theoretical answer, which in turn is broken down into three more specific ideas, namely that (3a) the question concerning the meaning of life is a pseudo-question, that (3b) this vanishing of the question is not yet the solution, and that (3c) the solution of the problem of life consists in taking a religious attitude towards the world. I try to show that in point 1 Wittgenstein accepted Tolstoy’s general idea, but gave it his own version, which in turn makes the definition of Ethics in terms of the meaning of life in point 2 understandable; whereas in point 3 Wittgenstein accepts Tolstoy’s ideas and tries to formulate them in his own way. (shrink)

This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman's model of joint action (...) is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert's in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and' Bratman's models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for conceited practices. (shrink)

This paper argues that we need to go beyond norms and normativity in the study of social life. The main purpose of the paper is to offer concepts and resources for a study of familiarity and estrangement, which, it is argued, is better placed to remind us, as we constantly need to be reminded, of one the most difficult things about living together, namely, how we understand the world of another person and with what attitude we approach all that which (...) is unfamiliar to us. (shrink)

This paper argues against two extreme attitudes to the history of a discipline: on the one hand, ignorance and dismissiveness; and on the other hand, canonisation. The ever-present challenge is to find a balance between these two extremes. The paper attempts to walk the middle way by offering an alternative history of theories of law. It does so by revealing the basic characteristics of theories of law that tend towards either the explanatory paradigm of discourse or of tradition. Discourse -oriented (...) theories tend to give explanatory priority to autonomous systems or orders of already articulated rules or norms. They also tend to conceptualise behaviour from the first person ex ante perspective, and tend to require explicit deliberation, even at the level of social conventions. The political value behind these theories tends to be the imposition of social order from above and the constraint of the power of officials by the rule of law. Tradition-oriented theories tend to give explanatory priority to the long-term activities of persons interacting in certain distinct contexts. They tend to conceptualise behaviour as consisting of embodied, though not completely unreflective, learning, resulting in the formation of certain skills and propensities. They also tend to focus on the transmission of social knowledge via the involvement of persons in certain contexts of interaction. The political value behind these theories is that of responsiveness and attention to the needs of the disadvantaged. The paper does not set out to evaluate the strengths or weaknesses of either explanatory paradigm. Rather, the aim is to offer an alternative history of the discipline of jurisprudence, with the hope that it encourages the construction of other such histories, thereby opening up possibilities for finding new insights in the works of the past. If, as it is argued, the formation of a jurisprudential orientation is at least partly dependent on how a legal theorist understands the history of jurisprudence, then offering alternative ways of seeing that history also carries with it the potential for renewing the discipline. (shrink)

This paper argues that changes in philosophical practice will be most revolutionary not in the exercise of creativity and innovation in the content and substance of philosophical arguments - although these are not only important but also, to some extent, necessary for the survival of philosophy - but rather, in changes made: 1) to the philosophical environment and its tools; 2) to the kinds of bodies developed and expressed in those environments and in the course of using those tools; or (...) 3) to the styles, manners and mechanics of philosophical thinking. The introduction of these changes is what we should expect from the exercise of the imagination. To expect anything less would be to place in danger the ethical and political significance of thoughtfulness, not only in the context of the practice of philosophy, but also more broadly for the ethical and political health of the global community. (shrink)

This paper argues that the primary task of legal theory should be to pursue the responsiveness of a legal system to the moral life of a community. However, the pursuit of such an aim cannot appeal merely or even dominantly to the short-term motivational structures of individuals - as is dominantly the case in contemporary legal theory. What is required, instead, is appeal to long-term learning structures. This paper introduces the notion of long-term learning structures by reference to the work (...) of John Dewey. It supplements Dewey's account by reference to two further principles of moral education: first, developing the recognition of vulnerability, and second, fostering respect for difference. Having provided an account of moral education, the paper goes on to consider its relationship to the pursuit of a socially just legal system. The paper does so primarily by reference to the work of Philip Selznick and Roger Cotterrell, calling in essence for the revival of pedagogically-informed communitarian jurisprudence. (shrink)

This paper argues against a conception of normativity that relies too heavily on the notions of guidance and compliance. Both guidance and compliance are argued to be myths, used, by observers, to legitimise their evaluation of persons, conceived of as participants, in game models. The aim of this critique is three-fold: first, to make us more aware of the role of the observer and the act of observation; second, to assist us in acknowledging the inescapable fragility of our practices of (...) making sense of and evaluating others; and thirdly, to help us to see the need for an account of the social life of normativity, i.e., of paying attention to the different dynamics of obligation, legitimation, justification, authority etc, in different kinds of relationships. (shrink)

This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue (...) – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues ; and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law. (shrink)

Training can influence behavioral performance and lead to brain reorganization. In particular, training in one modality, for example, auditory, can improve performance in another modality, for example, visual. Previous research suggests that one of the mechanisms behind this phenomenon could be the cross-modal recruitment of the sensory areas, for example, the auditory cortex. Studying expert musicians offers a chance to explore this process. Rhythm is an aspect of music that can be presented in various modalities. We designed an fMRI experiment (...) in which professional pianists and non-musicians discriminated between two sequences of rhythms presented auditorily or visually. Behavioral results showed that musicians performed in both visual and auditory rhythmic tasks better than non-musicians. We found no significant between-group differences in fMRI activations within the auditory cortex. However, we observed that musicians had increased activation in the right Inferior Parietal Lobe when compared to non-musicians. We conclude that the musicians’ superior visual rhythm discrimination is not related to cross-modal recruitment of the auditory cortex; instead, it could be related to activation in higher-level, multimodal areas in the cortex. (shrink)

This paper argues that the development of ethical education in law schools ought not to be restricted to the use of textual resources. In the first part of the paper, the continuing dominance of text as the object of analysis in legal theory, legal scholarship and legal practice is illustrated. The dangerous implications of this continuing dominance on the capacity to see and recognise the great variety and depth of suffering and vulnerability is also discussed. It is argued that recourse (...) ought to be had to those traditions of moral philosophy that emphasise the importance of cultivating vision as a form of moral discipline - a discipline, in turn, that can benefit a great deal from the use of non-textual resources, and in particular, from both the appreciation of and involvement in the visual and movement-based arts. In the second part of the paper the treatment of ethical education in the recent Carnegie Foundation for the Advancement of Teaching Report on Educating Lawyers is discussed. It is argued that we ought not to subsume the development of ethical education under the canopy of professionalism - a canopy already saturated with text, both in the form of the substantive and procedural law that is expected to be applied, and in the form of the evaluation of professional conduct in accordance with the relevant professional code. Finally, in the third part of the paper, a number of policy recommendations are made. Ultimately, the paper calls for an ethical education that combines both textual and non-textual resources. It is only via such a combination that law schools can provide sufficient opportunities for the range of ethical experiences that are required in order to enhance the effective development of the ethical imagination in law students. (shrink)

This paper offers some resources for the development of moral sensitivity in law schools and law firms. It does so, first, on the basis of a picture of legal life, which draws on the embodied-connectionist strand in cognitive science. Legal life requires role-differentiated behaviour, and immersion in these roles, and associated tasks, has the consequence that persons are oriented to notice only certain things rather than others (where those things will sometimes be morally relevant things to notice). Further, the lawyer-client (...) relationship is one characterised by the exercise of dominance, control and manipulation (by the lawyer) of a client dependent on the exercise of the lawyer's expertise. Moral education in law schools and law firms must help alleviate the problematic effects of these features of legal life on the moral sensitivity of persons. It can do so by the education of attention and encounter. Both terms are discussed and, by drawing on the Beyond Text in Legal Education project at the University of Edinburgh, associated pedagogical activities are described. Finally, the activities proposed, and their policy implications, are considered by reference to the wider concerns of both tertiary and professional legal education. (shrink)

This paper introduces the notion of responsiveness and the role it might play in moral, political and legal philosophy. The paper has four parts. The first considers the meaning of the call for making room for responsiveness, and discusses three potential bearers of responsiveness: 1) individuals; 2) institutions; and 3) practices. The second part of the paper discusses three possible objects of responsiveness (i.e., three possible answers to the question, "responsiveness to what?"): 1) the experience of moral emotions; 2) the (...) perception of values; and 3) thicker concepts, such as needs, suffering, vulnerability and dignity. The third part of the paper considers the inter-appropriateness of bearers and objects of responsiveness, i.e., it considers the relationship between the theoretical project of making room for responsiveness and the theoretical project of answering the "what" question. Finally, the fourth part briefly addresses an assumption made in the first part of the paper, namely, that there always and already exist constraints - an assumption that allows the philosophy of responsiveneness to avoid either presupposing a state of nature or aiming at an ideal theory (e.g., of the good life or of just institutions). Apart from attempting to analyse the structure of the notion of responsiveness and what it may be capable of offering moral, political and legal philosophy, the paper argues that a philosophy of responsiveness can also help us imagine a responsive philosophy. (shrink)

The first part of this paper provides a general theory of moral climates, which incorporates the following three elements: first, the values and limitations of that picture of moral behaviour focused on rules, rule-following and rationality; second, that picture of moral behaviour focused on institutionally-embedded activity; and third, that picture of moral behaviour that urges us to come face to face with our own limitations, i.e., our own ways of orienting ourselves to objects of value, such that we do not (...) neglect the vigilance required in order to see and recognise the great variety and depth of suffering and vulnerability. The moral climate of any particular social environment can be evaluated from the perspective of these three elements. The second part of the paper applies this general theory of moral climates to that of international economic institutions. It is argued that, despite their importance, both human rights discourse and institutional features designed to increase participation from developing countries in decision- and policy-making, are of limited use, partly because of their inherent limitations, and partly because of the emergence of international economic institutions in the context of an already heavily de-politicised and autonomous economic sphere. The necessary transformation of international economic institutions ought not to neglect the continuing domination of the orientation of those institutions towards the value of efficiency, to which all other values tend to be made subordinate. The paper proposes not only vigilance about the limitations of current and proposed normative languages and institutional features, but also urges the consideration of a Community Forum scheme, which is designed to bring to light and thereafter communicate, via the participation of international experts and artists, some of the particularities of suffering and vulnerability within specific communities. Finally, the paper illustrates the need for greater awareness of the particularities of suffering and vulnerability by considering the continuing problem of access to public goods and services amongst the poor in Nigeria. (shrink)

Judging Virtuously: Developing an Empathic Capacity for Perceptual Sensitivity: A Review of Amalia Amaya and Ho Hock Lai , Law, Virtue and Justice.

This paper argues that the contemporary treatment within moral, political and legal philosophy of the issue of the effective and proper constraint (and, ultimately, also, direction) of power suffers from an absence of engagement with the following question: what picture of behavior - of those in power - should we adopt in order to consider how it might be constrained and directed? It is argued that the absence of engagement with this question can be explained by the dominance of the (...) rationalization of behavior, and the concomitant methodology of scrutinizing the role of rules in excerpts of short-term reasoning. The paper offers an overview of sources that can assist in providing an alternative picture of behavior. The paper is organized into three parts: the first considers the long-term development of perceptual and kinetic know-how; the second examines the social, institutional and community-based location of that know-how; and the third considers how the sources of the first two parts can help us in the necessary transition from an over-emphasis on legal language, to an emphasis on legal work. Combining all the elements together, legal work is defined as the institutional emergence of perceptual and kinetic know-how that necessarily accompanies the constraint - amassing and guidance - giving use of legal language. The emphasis on this picture of legal work can provide us with the tools that will not only allow us to design institutions and the resources used by legal officials to constrain the power exercised by them more effectively, but it will also allow us to consider what moral capacities we would like legal work to be informed by, and, equally, what kind moral institutional ways of life we might strive for. Those moral capacities and moral institutional ways of life, in turn, will have to be supplemented by a theory of social justice, the appropriate beginning of which is an understanding of how we can learn to see the great variety and pervasiveness of suffering and vulnerability. Only once we understand how we come to see suffering and vulnerability, can we consider how it will be appropriate to respond to it, i.e. to respond by considering what moral capacities are required to be exercised by officials, and how we might design our institutions so that they enhance moral institutional ways of life. (shrink)

Some accounts of social life give explanatory emphasis to normative requirements themselves. This paper resists such a tendency. It is argued that when normative requirements themselves are given explanatory priority the concept of social normativity tends to be situated between these requirements on the one hand, and the practice of evaluating conduct in accordance with those requirements. Normativity so situated is then required to bridge the justificatory gap between the two. It is further illustrated how such an explanatory structure is (...) designed to avoid questions concerning the legitimacy of the exercise of power. Making room for the silence of social normativity involves paying theoretical attention to the time before the first instance of a problematisation of a certain way of doing, which is thereafter commonly described, under the benefit of hindsight, as a deviation from a rule that was implicit all along, and merely made explicit. Instead of believing or assuming that we are able to achieve mastery and control over the practices we engage in, we ought to recognise, instead, that persons are always and already, inevitably and necessarily, emotionally involved in certain common or joint objects that are, at any one time, invisible to them. Given the pervasiveness, tenacity and, sometimes, violence of the silence of social normativity, the vital question becomes: how can we educate future generations such that they are both capable and willing to reflect on the consequences of their practices? (shrink)

This paper examines the problem of normativity in contemporary legal theory, paying particular attention to the relationship between the conception of the problem and related explanations of behaviour. The first part of the paper shows how the problem of normativity, conceived of as a matter of determining how legal norms function as reasons for action, is linked to an explanation of behaviour that is posited or assumed to be capable of being guided by reasons. More importantly for the purposes of (...) the paper, the first part also shows the problem of normativity plays a certain function thanks to which a theorist can, e.g., evaluate lawmaking and adjudication practices ; scrutinise the reasonabless of norms ; critically examine the circumstances under which law is authoritative ; or make distinctions between certain kinds of phenomena that influence conduct. The second part of the paper offers the sketch of an alternative relationship between a conception of the problem of normativity and an explanation of behaviour. The general aim of the paper is to endorse an engagement with the works of others that pays attention to the relationship between problems and explanations, and to the implications of any one way of drawing that relationship for images and practices of theorising. (shrink)

The paper aims at presenting a synthetic reconstruction of Kierkegaard’s late critique of what he called “official Christianity,” that is that which in the world counts as Christianity but which, according to Kierkegaard, has nothing to do with real Christianity. The paper begins with a short presentation of what according to Kierkegaard the essence of real Christianity is, with special emphasis on his idea of imitating Christ. Then his main reproaches follow: leading a pagan life and calling it Christian, rejection (...) of imitation of Christ and putting some verbal activities instead, and rejection of imitation of Christ and worshiping him instead. Those three points are supplemented by Kierkegaardian critique of clergy. In the final section it is argued that Kierkegaard’s critique is universal in scope, i.e. it concerns all major Christian denominations. (shrink)

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed (...) fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)

The aim of this paper is to illustrate, in some detail, the phenomenon of chess expertise and the making of errors by chess experts. In doing so, this paper also aims to reveal the close relationship between expertise and error making in chess. Finally, the paper aims to show how understanding that integral relationship can assist in the creation of pedagogical methods that can minimize error making, while also maximizing expertise. The analysis may provide some assistance in the development of (...) our understanding of expert epistemologies amongst the professions, and for reflection about the appropriateness of current pedagogical methods utilized in the education of those professions. (shrink)